TEAM CODE: 420

IN THE INTERNATIONAL COURT OF JUSTICE

AT
THE PEACE PALACE, THE HAGUE

THE REPUBLIC OF MEROVIDEA

(APPLICANT)
V.
THE FEDERATION OF BREZANIA
(RESPONDENT)

CASE CONCERNING A SPECIAL AGREEMENT TO SUBMIT THE

INTERNATIONAL COURT OF JUSTICE THE DIFFERENCES BETWEEN THE
PARTIES CONCEERNING THE LEGALITY OF DEFENCE NECESSITY IN
INTERLINKING OF RIVERS AND OTHER ISSUES

MEMORIAL FOR THE RESPONDENT

4th VIPS INTERNATIONAL LAW MOOT COURT COMPETITION, 2017
OCTOBER 2017
 TABLE OF CONTENTS

Table of Contents……………………………………………………………………………ii

Index of Authorities……………………………………………………………….……….iii-v

Statement of Jurisdiction…………………………………………………………………….vi

Statement of Facts……………………………………………………………………….vii-viii

Statement of Issues…………………………………………………………………………...ix

Legal Pleadings……………………………………………………………………………….2

1. Brezania has not violated the “Treaty of Equity” and the “Uba Agreement” and is

entitled to the defence of necessity for interlinking the rivers and constructing dams

for mitigating floods………………………………………………………………...2-3

2. Brezania is not responsible for any environmental damage sustained by Merovidea. In

any case, Brezania cannot be held liable for the actions of its corporations………...4-6

3. Merovidea has breached international law obligations by expropriating the assets of

Central Bank of Brezania in Merovidea…………………………………………….7-9

4. Merovidea has violated International Law obligations being a member of WTO by

putting undue trade restrictions on Brezania……………………………………...10-12

5. Merovidea has violated principles of international law by conducting nuclear tests

close to its border with Brezania and must make reparations to Brezania for

conducting these tests and incidental environmental damage sustained by Brezania

especially to the Yak wetlands……………………………………………………13-16

6. The Creek of Tenling shall be divided mid channel as per International Law………17

Prayer for Relief……………………………………………………………………………..18

ii
 INDEX OF AUHORITIES

1. Peter Wetterstein “A Proprietary or Possessory Interest: A Condition sine qua non for
claiming damage for environmental impairment”
2. Xue Hanqin, Transboundary Damage in International Law (Cambridge: Cambridge
University Press, 2003), pp. 19-105 and 113-182.
3. Mara Theophila, Moral Monsters under the bed: Holding Corporations Accountable
for Violations of the Alien Tort Statute after Kiobel v. Royal Dutch Petroleum Co., 79
FORDHAM L.REV. 2859 (2011).
4. STEVEN RATNER, CORPORATIONS AND HUMAN RIGHTS: A THEORY OF LEGAL
RESPONSIBILITY 456 (2001).
5. Stockholm Declaration on the Human Environment, Principle 21, UN Doc. A/CONF.
48/14/Rev.1 (1973) [Stockholm Declaration];
6. Rio Declaration on Environment and Development, Principle 2, UN Doc.A/CONF. 151/26
(1992) [Rio Declaration];
7. O. Schachter, International Law in Theory and Practice, at 336-368 (Brill Academic
Publishers 1991); Xue Hanqin, Transboundary Damage in International Law, at 4
8. Report of the International Law Commission, UN GAOR, 56th Sess., Supp. No. 10, at 150-
151, UN Doc. A/56/10 (2001) [56th ILC Report];
9. Trail Smelter Arbitration (U.S. v. Canada) 1938/1941, R.I.A.A. 1905.
10. P. SANDS, PRINCIPLES OF INTERNATIONAL ENVIRONMENT LAW 87 (1995).
11. Riccardo P. Mazzeschi, Forms of International Responsibility for Environmental Harm, in
INTERNATIONAL RESPONSIBILITY FOR ENVIRONMENTAL HARM
12. RENE LEFEBER, TRANSBOUNDARY ENVIRONMENTAL INTERFERENCE AND
THE ORIGIN OF STATE LIABILITY 60, in 24 DEVELOPMENTS IN INTERNATIONAL
LAW (1996).
13. Pulp Mills in the River Uruguay (Arg. v. Uru.), 2010 I.C.J. 55-56 (Apr. 20); Report of the
International Law Commission on the Work of its Fifty-Third Session, 154, U.N.
Doc.A/56/10 (2004) [53rd ILC Report].
14. French Cour de cassation, Sirey 1849, I, 81.
15. I Congreso del Partido, [1983] 1 AC 244, 64 ILR 307; see also P. Mayer & V. Heuzé, Droit
international privé (9th ed. 2007) § 324.
16. I. Brownlie, Principles of Public International Law (7th ed. 2008) p. 326.
17. Lecouturier v. Rey [1910] A.C. 262, Revue Darraas 1910, 914

iii
18. [1947] 1 Ch. 629; to the same effect Novello & Co v. Hinrichsen Edition Ltd. [1951]
Ch. 595, [1951] Ch. 1026, cf. J. G. Fleming in I.L.Q. 1951, 377 and M. Saporta in
Clunet 1951, 1120.
19. (1946) 79 Ll.L.L.R. 245, (1947) 80 Ll.L.L.R. 99.
20. Estonian State Cargo and Passenge S.S. Line v. Proceeds of the Steamship Elise and
Messrs Laane and Baltser, Brit. Yearb. 1949, 427, A.J.I.L 1949, 816 and Messrs
Laane and Baltser v. Estonian State Cargo and Passenger S.S. Line, Brit. Yearb.
1953, 512, A.J.I.L. 1950, 201.
21. Alfonso di Borbone v. Credito Italiano and Banco de Vizcaya, District Court of Rome
30-08-1993, Court of Appeal Rome 5-6-1934, Ann. Dig. 1935-1937, 198
22. Baglin v. Cusenier, Revue Darras 1907, 972; 221 U.S. 580 (1911)
23. Turkey – Restrictions on Import of Textiles and Clothing Products, WT/DS34/R, Panel
Report, 31 May 1999, at para 9.204.
24. Japan – Taxes on Alcoholic Beverages, WT/DS8/AB/R, 4 Oct. 1996, 16.
25. Korea – Taxes on Alcoholic Beverages, WT/DS75/AB/R, 18 Jan. 1999, at para. 120.
26. EEC – Measures on Animal Feed Proteins, BISD (25th Suppl.), 14 Mar. 1978
27. South West Africa Cases, Preliminary Objections [1962] ICJ Rep 319, at 327.
28. M. J. L. Hardy, ‘‘Nuclear Liability: The General Principles of Law and Further Proposals,”
British Yearbook of International Law, vol. 36 (1960), p. 223, at p. 238
29. Whiteman, Digest, vol. 4, pp. 553--607.
30. Michael Akehurst, Custom as a Source of International Law, 47 British Yearbook of
International Law 1 (1974–75).
31. Nuclear Tests Case, (New Zealand v. France), (Interim Measures), June 22, 1973, (1973) ICJ
Reports 135

TREATIES AND CONVENTIONS

1. Geneva Convention 12 August 1949

2. Vienna Convention on Diplomatic Relations (1961)
3. Convention on the Protection and Use of Trans-boundary watercourses and
International Lakes (1992)
4. The Convention on the Law of Non- Navigational Uses of International Watercourses,
(1997)
5. The Convention on Nuclear Safety (1994)

iv
6. Protocol to Amend the 1963 Vienna Convention on Civil Liability for Nuclear
Damage and the Paris Convention, 1988
7. Convention on Supplementary Compensation for Nuclear Damage (CSC), 1997
8. United Nations Convention to Combat Desertification (1994)
9. Convention on the Prevention of Marine Pollution by the dumping of wastes and
Other Matter (1972)
10. UN Convention on the Law of the Sea
11. International Covenant on Civil and Political Rights (1966)
12. Ramsar Convention.
13. Treaty of Equity
14. Uba Agreement

v
 STATEMENT OF JURISDICTION

On behalf of the Republic of Merovidea and the Federation of Brezania, and in accordance
with Article 40(1) of the Statute of the International Court of Justice, who have the honour to
transmit to you an original of the Special Agreement for submission to the International Court
of Justice of differences between the Applicant and the Respondent concerning the legality of
defence of necessity in interlinking of rivers and other issues, signed in the Hague, The
Netherlands on twelfth day of September in the year two thousand and seventeen.

vi
 STATEMENT OF FACTS

1. Applicant, the Republic of Merovidea (“Merovidea”), and Respondent, the Federation

of Brezania (“Brezania”) are neighbouring states that occupy the North Amber Sub-
Continent. The Creek of Tenling (“The creek”), one of the largest fishing grounds in
North Amber Sub-Continent, separates Merovidea from Brezania at the latter’s
southern border and opens up into the Amberosia Ocean.
2. The Republic of Merovidea, a democracy and a developed nation became the first
developed nation in the world to adopt an environment based economy. All vocations
which are considered to be even slightly harmful to environment are banned in
Merovidea (with defence sector being the sole exception) .
3. Both the nations entered into a treaty “Treaty of Equity” and agreed to share water of
the rivers of the Fountain river system in an equitable manner.
4. During the years 1996-1999 Brezania witnessed frequent devastating floods and
significant economic loss. Merovidea granted a MFN status to Brezania. Brezania
government wanted to interlink the various rivers flowing through Brezania to prevent
drought and floods.
5. Adverse effects of this project were evident, the concentration of mercury gradually
started increasing in Merovedian waters. The number of people diagnosed with
Minamata disease Merovidea accused Brezania of waging environmental terrorism on
its soil and inflicting a covert biological and chemical warfare on its subjects.
6. Merovedian Superior Court while acting on a writ petition filed by a citizen’s group
“Minamata Sufferers” attached the assets of Central Bank of Brezania located in
Merovidea as a security against economic reparations.
7. In the north-western Zastu, the only source of fresh waterbecame an almost non
navigable and desertification of Merovidea begun. MFN status of Brezania was
revoked and there was strict import controls over all imports coming from Brezania
and a green cess @12% above all other taxes. On 26th January 2017 ‘Merovidea
Youth Army’crossed over the border and attacked a mineral exploration plant using
petrol bombs.
8. Merovidea conducted a series of contrived nuclear tests within 20km of its border
with Brezania.

vii
9. IAEA research on concluded that the tests have caused certain irreversible damage to
the ecology of the area.
10. Both Merovidea and Brezania are members of United Nations, WTO and several
conventions.

viii
 STATEMENT OF ISSUES

Pursuant to the Statute of the International Court of Justice, the questions presented before
this Hon’ble Court:
1. Whether Brezania has not violated the “Treaty of Equity” and the “Uba Agreement”
and is entitled to the defence of necessity for interlinking the rivers and constructing
dams for mitigating floods.
2. Whether, Brezania is not responsible for any environmental damage sustained by
Merovidea. In any case, Brezania cannot be held liable for the actions of its
corporations.
3. Whether, Merovidea has breached international law obligations by expropriating the
assets of Central Bank of Brezania in Merovidea.
4. Whether, Merovidea has violated international law obligations being a member of
WTO by putting undue trade restrictions on Brezania.
5. Whether, Merovidea has violated principles of international law by conducting
nuclear tests close to its border with Brezania and must make reparations to Brezania
for conducting these tests and incidental environmental damage sustained by Brezania
especially to the Yak wetlands.
6. Whether. the Creek of Tenling shall be divided mid-channel as per International Law.

ix
 LEGAL PLEADINGS

1. Brezania has not violated the “Treaty of Equity” and the “Uba
Agreement” and is entitled to the defence of necessity for interlinking
the rivers and constructing dams for mitigating floods.

It is recognized that harm could occur despite implementation of the duties of prevention.
Trans boundary harm could occur for several other reasons not involving State responsibility.
For instance, there could be situations where the preventive measures were followed but in
the event proved inadequate or where the particular risk that caused trans boundary harm
could not be identified at the time of initial authorization and hence appropriate preventive
measures were not envisaged. In other words, trans boundary harm could occur accidentally
or it may take place in circumstances not originally anticipated. Further, harm could occur
because of gradually accumulated adverse effects over a period of time. This distinction
ought to be borne in mind for purposes of compensation. Because of problems of establishing
a causal link between the hazardous activity and the damage incurred, claims in the latter case
are not commonplace.1
Notwithstanding anything contained in Article 4 & Article 5 the parties can take all measures
related to rivers required to meet the basic necessities of their growing population. 2 In the
case at hand Brezania has taken the measure to interlink the rivers in order to prevent itself
from flood which causes a lot of damage to it every year. The interlinking of rivers was
portrayed as
a necessary step to mitigate the loss of life and property due to floods.3
Since Brezania was a developing nation and as said by the Brezanian President, “
We uphold and venerate the treaty of equity. But lest not Merovidea be misinformed. A treaty
to share water equitably does not mean a treaty to share water equally. The seven tributaries
are still flowing in Merovidea. Ours is a developing nation, you are a developed nation. Our

1
See Peter Wetterstein “A Proprietary or Possessory Interest: A Condition sine qua non for claiming damage for
environmental impairment”, in Peter Wetterstein, Harm to the Environment: the Right to Compensation and
Assessment of Damage (Oxford: Clarendon Press (1997)), p. 30. See also Xue Hanqin, Transboundary Damage
in International Law (Cambridge: Cambridge University Press, 2003), pp. 19-105 and 113-182.
2
Article 6, the Treaty of Equity.
3
Moot Preposition ¶ 8

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needs are different...”4 Since the needs of Brezania were different and unlike Merovidea it
could not follow the principle of “Guardians of the Green” and adopt an environment based
economy.
Brezania was a developing nation and it followed a policy of absolute economic liberalisation
where the federal government was responsible only for international relations and defence.
The five federal states of Brezania are essentially run by five giant corporations. The major
businesses of these corporations are oil & mineral explorations, metallurgy, cements,
fertilizers and defence exports. In fact oil & mineral explorations accounted for more than
50% of Brezania’s GDP in the year 2014.5 Al these measures are not too beneficial for the
environment but they are necessary for the economic development of Brezania. And thus
interlinking of the rivers should be considered a necessity and the Hon’ble Court should hold
that Brezania has not violated the “Treaty of Equity” and the “Uba Agreement” and is
entitled to the defence of necessity for interlinking the rivers and constructing dams for
mitigating floods.

4
Moot preposition ¶ 9
5
Moot Preposition ¶ 4

3|Page
 2. Brezania is not responsible for any environmental damage sustained
by Merovidea. In any case, Brezania cannot be held liable for the
actions of its corporations.

Various environmental treaties demonstrate a willingness of states to impose civil liability

directly on corporations for certain violations of international environmental law.6
Commentators refer to them as “civil liability” treaties.7 These are “transboundary civil
litigation” regimes wherein the MNCs are held liable for the harm caused by them.8 Hence,
Brezania should not be held liable for the acts of its corporations.9
The obligation not to cause transboundary harm has been acknowledged as customary
international law.10 To constitute a violation of this rule, not only a physical relationship
between the activity concerned and the damage caused needs to be established,11 but the
threshold of the harm caused which allows claims to be brought also should reach the
standard of “significant”.12 Besides even if the transboundary harm exists, the inobservance
of the due diligence obligation on the part of the accused State must be established. 13 The
harm principle in Trail Smelter14 demands that the state of origin is enjoined from causing

6
Mara Theophila, Moral Monsters under the bed: Holding Corporations Accountable for Violations of the Alien
Tort Statute after Kiobel v. Royal Dutch Petroleum Co., 79 FORDHAM L.REV. 2859 (2011).
7
Boyle, Making the Polluter Pay: Alternatives to State Responsibility in the Allocation of Transboundary
Environmental Costs, in INTERNATIONAL RESPONSIBILITY FOR ENVIRONMENTAL HARM, 363-67
(Francesco Francioni & Tullio Scovazzi eds., 1991); Karl Zemanek, Causes and Forms of International
Liability, in CONTEMPORARY PROBLEMS OF INTERNATIONAL LAW, 319-327 (Bin Cheng & E.D.
Brown eds., 1988).
8
STEVEN RATNER, CORPORATIONS AND HUMAN RIGHTS: A THEORY OF LEGAL
RESPONSIBILITY 456 (2001).
9
Moot Preposition ¶ 4
10
Stockholm Declaration on the Human Environment, Principle 21, UN Doc. A/CONF. 48/14/Rev.1 (1973)
[Stockholm Declaration]; Rio Declaration on Environment and Development, Principle 2, UN Doc.A/CONF.
151/26 (1992) [Rio Declaration]; Convention on Biological Diversity, Principle 3, 31 I.L.M. 818 (1992)
[CBD]; Trail Smelter Arbitral Decision (U.S. v. Can.), 3 R.I.A.A. 1965 (1938/1941).
11
O. Schachter, International Law in Theory and Practice, at 336-368 (Brill Academic Publishers 1991); Xue
Hanqin, Transboundary Damage in International Law, at 4 (Cambridge U. Press 2003). Trail Smelter Case
phrases this requirement as “the injury shall be established by clear and convincing evidence”, but this approach
has been gradually abandoned by international law considering that it goes against the precautionary trend in
environmental management at national and international level. See Tim Stephens, International Courts and
Environmental Protection, at 134 (Cambridge U. Press 2009).
12
Report of the International Law Commission, UN GAOR, 56th Sess., Supp. No. 10, at 150-151, UN Doc.
A/56/10 (2001) [56th ILC Report]; Corfu Channel Case (U.K. v. Alb.), 1949 I.C.J. at 4, 22.
13
56th ILC Report supra note 3, at 154; Pulp Mills in the River Uruguay Case (Arg. v. Uru.), 2010 I.C.J. at 55-
56.
14
Trail Smelter Arbitration (U.S. v. Canada) 1938/1941, R.I.A.A. 1905.

4|Page
transboundary environmental harm that reaches a certain threshold level of significance or
seriousness,15 and it is unlikely that all damage gives rise to liability.16
A state has the obligation to supervise activities within its jurisdiction or control, so that such
activities do not cause significant environmental harm either to the territory or resources of
other States.17 However, the occurrence of transboundary damage in itself does not
necessarily equate to State responsibility.18 There is a threshold criterion in that
transboundary damage should reach a certain degree of severity.19 Mere occurrence of
damage is not sufficient to render a state liable as a certain degree of harm is inherent in
interaction among states.20 To be legally relevant, the damage should be at least greater than
the mere nuisance or insignificant harm which is normally tolerated.21 In the opinion
forwarded by the ILC, there is no breach without the actual occurrence of transboundary
environmental interference causing significant harm22
At a bilateral summit held at City of Uba, Brezania on 7th August 2002, both nations arrived
at an understanding according to which Brezania agreed to carry out an Environmental
Impact Assesment of the entire project and share its report with Merovidea. Brezania also
agreed to provide information to Merovidea regarding the interlinking of rivers, details about
dams being built and quality of water being released into Merovidea on a monthly basis. Both
nations agreed to constitute a joint commission for this purpose. This understanding came to
be known as the Uba Agreement.23 Brezania has agreed to take all the necessary measures to
check the environmental pollution, although the interlinking of the rivers was a necessity for
Brezania because it suffered great damages every year due to flood. Brezania had also cited
certain examples of how several nations have interlinked their major rivers in recent years to
mitigate and prevent droughts and floods.24

15
Ibid.
16
P. SANDS, PRINCIPLES OF INTERNATIONAL ENVIRONMENT LAW 87 (1995).
17
Riccardo P. Mazzeschi, Forms of International Responsibility for Environmental Harm, in
INTERNATIONAL RESPONSIBILITY FOR ENVIRONMENTAL HARM (Francesco Francioni & Tullio
Scovazzi eds, 2001).
18
XUE HANQIN. TRANSBOUNDARY DAMAGE IN INTERNATIONAL LAW, CAMBRIDGE STUDIES
IN INTERNATIONAL AND COMPARATIVE LAW 164 (Cambridge University Press, 2003).
19
RENE LEFEBER, TRANSBOUNDARY ENVIRONMENTAL INTERFERENCE AND THE ORIGIN OF
STATE LIABILITY 60, in 24 DEVELOPMENTS IN INTERNATIONAL LAW (1996).
20
Pulp Mills in the River Uruguay (Arg. v. Uru.), 2010 I.C.J. 55-56 (Apr. 20); Report of the International Law
Commission on the Work of its Fifty-Third Session, 154, U.N. Doc.A/56/10 (2004) [53rd ILC Report].
21
Supra note 13.
22
Supra note 14
23
Moot Preposition ¶ 9
24
Moot Preposition ¶ 8

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Also Merovidea has objected to other ventures of Brezania which were for the benefit of
Brezania. Merovidea is a developed country and it does not need any sort of economic
development but Brezania is a developing country and for it, its economic development
matters more than preservation of environment. Even though the rate of GDP of Merovidea is
in negative its GDP in figures is way more than that of Brezania 25 and also due to floods
almost every year Brezania faces a lot of economic problem and it cannot follow all the
environmental measures like Merovidea.
Moreover in order to compensate the loss caused by Brezania, Merovidea has already
attached the assets of Central Bank of Brezania located in Merovidea as a security against
economic reparations.26
Thus, Brezania is not responsible for any environmental damage sustained by Merovidea. In
any case, Brezania cannot be held liable for the actions of its corporations.

25
Moot Preposition ¶ 3
26
Moot Preposition ¶ 18

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 3. Merovidea has breached international law obligations by expropriating assets of
Central Bank of Brezania in Merovidea.

It is a well-recognised rule in international law that the property of aliens cannot be taken,
whether for public purposes or not, without adequate compensation. The rules of state
immunity address the extent to which a foreign state is protected from being sued in the
courts of other countries. Immunity prevents a foreign state being made a party to
proceedings in the forum state and/or will protect its property from being seized to satisfy a
judgment. Immunity can extend to legal proceedings against the foreign state itself, its organs
and enterprises, and its agents. Immunity is generally considered to be a procedural bar. If it
wishes, the defendant foreign state may waive its right to immunity and the case will then
proceed. Such waivers can occur either in advance, such as in a contract, or after a dispute
arises.27
State immunity has been justified on a variety of grounds. One ground is the status of
equality attaching to the independent sovereign, which is said to preclude one State from
exercising jurisdiction over another under the principle of par in parem non habet
jurisdictionem: one sovereign State is not subject to the jurisdiction of another State. This
was often invoked as the basis for absolute immunity, as for example in the frequently-cited
1849 French case, Lambège et Pujol:
L‟indépendance réciproque des Etats est l‟un des principes les plus universellement reconnu
du droit des gens … De ce principe, il résulte qu‟un gouvernement ne peut être soumis, pour
les engagements qu‟il contracte, à la juridiction d‟un Etat étranger.28
Although this rationale is primarily associated with the absolute theory, it has also been
framed in some cases in a manner consistent with the restrictive approach to sovereign
immunity, by limiting its effective scope to the sovereign acts of the foreign State:
It is necessary to start from first principle. This basis on which one State is considered to be
immune from the territorial jurisdiction of the courts of another State is “par in parem non

27
Immunity applies to the foreign state being made a defendant in a suit. Where foreign state entities are
plaintiffs or claimants, they are generally treated like other litigants. Thus, a foreign state investor in a mutual
fund would see its claims against the fund treated like those of other claimants. Moreover, where a foreign state
brings suit, it generally acts as a waiver of its immunity with regard to related counterclaims.
28
French Cour de cassation, Sirey 1849, I, 81.

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habet imperium”, which effectively means that the sovereign or governmental acts of one
State are not matters on which the courts of other States will adjudicate29.
A second ground is that of non-intervention in the internal affairs of other States. As noted by
Brownlie, “the rationale rests equally on the dignity of the foreign nation, its organs and
representatives and on the functional need to leave them unencumbered in the pursuit of their
mission”.30 There is also no doubt that court proceedings against foreign states may generate
tensions and interfere with the conduct of international relations.
Confiscation with extra-territorial intention is sometimes regarded as penal law and therefore
rejected. In England the French Association Act of 1901 was regarded as penal. 31 In
Frankfurther v. Exner32 finally, where the extraterritorial authority of a Verwalter, appointed
under the Austrian legislation of April 13, 1938 came at issue, any such authority was
rejected, since confiscatory laws were involved, which “though not strictly penal… are
regarded here in the same light as penal laws…”
Canada used the expression in the well-known Elise-Case referring to the Tallina-case33; the
trial in the first instance of the Elise-case is interesting that the court did not raise objections
to extra-territorial operation: “I have grave doubts that I would consider nationalization with
25% compensation as being regarded in Canadian law as contrary to the essential principles
of justice and morality.”34 Legal proceedings regarding the property of King Alfonso of Spain
were besides in England, also taken in Italy; here, too, extra-territorial effect was rejected on
the ground of the penal nature of the measure.35
Non-enforcement of extra-territorial operation on the ground of the penal character of the
measure was encountered in the suit about the trade mark of the Carthusian liqueur 36 in the
U.S.A.
Besides the reasons for strictly territorial application lying in the nature of the confiscatory
measures, a ground for the rejection of extra-territorial validity is sometimes the intention of

29
I Congreso del Partido, [1983] 1 AC 244, 64 ILR 307; see also P. Mayer & V. Heuzé, Droit international
privé (9th ed. 2007) § 324.
30
I. Brownlie, Principles of Public International Law (7th ed. 2008) p. 326.
31
Lecouturier v. Rey [1910] A.C. 262, Revue Darraas 1910, 914
32
[1947] 1 Ch. 629; to the same effect Novello & Co v. Hinrichsen Edition Ltd. [1951] Ch. 595, [1951] Ch.
1026, cf. J. G. Fleming in I.L.Q. 1951, 377 and M. Saporta in Clunet 1951, 1120.
33
(1946) 79 Ll.L.L.R. 245, (1947) 80 Ll.L.L.R. 99.
34
Estonian State Cargo and Passenge S.S. Line v. Proceeds of the Steamship Elise and Messrs Laane and
Baltser, Brit. Yearb. 1949, 427, A.J.I.L 1949, 816 and Messrs Laane and Baltser v. Estonian State Cargo and
Passenger S.S. Line, Brit. Yearb. 1953, 512, A.J.I.L. 1950, 201.
35
Alfonso di Borbone v. Credito Italiano and Banco de Vizcaya, District Court of Rome 30-08-1993, Court of
Appeal Rome 5-6-1934, Ann. Dig. 1935-1937, 198; Alphonso XIII v. Banco commercial italiana et Banco
Urquijo, District court of Milan 17-1-1935, Clunet 1935, 1056
36
Baglin v. Cusenier, Revue Darras 1907, 972; 221 U.S. 580 (1911)

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the measure concerned. The act or decree in question is then interpreted and it is believed
may be deduced from it.. This view is expressed in the French Arno-Mendi-case37; moreover
this feeling had already been expressed elaborately before in the Ropit-case. In the latter case
the court observed, and this was upheld on appeal, that in Russia herself the the Soviet
Russian acts were considered to have strictly territorial application. This has been laid down
in a circular of April 12, 1922 from the People’s Commissariat of Foreign Affairs, addressed
to the representatives of Soviet Russia abroad, and also in a circular of September 26, 1923
from the People’s Commissariat of Justice, addressed to the notaries.38
According to the above cases and opinions of various jurists it is very clear that a country is
not subject to the jurisdiction of the courts of other countries and hence Merovidea by
expropriating the assets of Central Bank of Brezania has breached the International Law
obligations as the Central bank of Brezania is a separate judicial entity and is not a party to
the judgement on liability of which enforcement is sought and even otherwise, it benefits
from immunities from enforcement proceedings as a matter of international law.39
Hence, the Hon’ble court should hold that Merovidea has breached International Law
obligations by expropriating the assets of Central Bank of Brezania.

37
Ann. Dig. 1935-1937, 195(Spanish requisition)
38
US v. Pink, 315 U.S. 203 (1942).
39
Moot Problem ¶ 18.

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 4. Merovidea has violated international law obligations being a
member of WTO by putting undue trade restrictions on Brezania.

The WTO system contributes to development. On the other hand, developing countries need
flexibility in the time they take to implement the system’s agreements. And the agreements
themselves inherit the earlier provisions of GATT that allow for special assistance and trade
concessions for developing countries.
If, within 20 days after the expiry of the reasonable period of time, the parties have not
agreed on satisfactory compensation, the complainant may ask the DSB for permission to
impose trade sanctions against the respondent that has failed to implement. Technically, this
is called “suspending concessions or other obligations under the covered agreements.”40 The
level of suspension of obligations authorized by the DSB must be “equivalent” to the level of
nullification or impairment41. This means that the complainant’s retaliatory response may not
go beyond the level of the harm caused by the respondent. At the same time, the suspension
of obligations is prospective rather than retroactive; it covers only the time-period after the
DSB has granted authorization, not the whole period during which the measure in question
was applied or the entire period of the dispute.
In Turkey – Textiles, the panel observed that Turkey did not provide it with ‘sufficient
information to set aside the presumption that the introduction of these import restrictions ...
has nullified and impaired the benefits accruing to India under GATT/WTO’.42 The adverse
trade impact does not necessarily imply a decline in the volume of international trade of the
state concerned. It is indeed possible that the adverse impact means more limited growth than
that which would have been attained in the absence of any conduct inconsistent with WTO
obligations. In Turkey – Textiles, the panel further pointed out that, ‘even if Turkey were to
demonstrate that India’s overall exports of clothing and textile products to Turkey have
increased from their levels of previous years, it would not be sufficient to rebut the
presumption of nullification and impairment caused by the existence of WTO incompatible
import restrictions’.43

40
Article 2.2 of the DSU
41
Article 2.4 of the DSU
42
Turkey – Restrictions on Import of Textiles and Clothing Products, WT/DS34/R, Panel Report, 31 May 1999,
at para 9.204.
43
ibid

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Furthermore, it may be sufficient for the violation to have a potential adverse impact,
regardless of its negative impact, regardless of its negative effects on actual trade. 44 The
obligations concerning national treatment are a remarkable example. It has been observed
that Article III of GATT ‘obliges Members of the WTO to provide equality of competitive
conditions for imported products in relation to domestic products’.45 In other words, this
provision is directed at ‘avoiding protectionism, requiring equality of competitive conditions
and protecting expectations of equal competitive relationships’.46
Exposing imported products to a risk of discrimination itself constitutes a form of
discrimination within the meaning of Article III.47 In particular, it is irrelevant that the ‘trade
effects’ on the tax differential between imported and domestic like products, as reflected in
the volume of imports, are insignificant or even non-existent. Article III protects expectations
not of any particular trade volume, but rather of ‘the equal competitive relationships between
imported and domestic products’.48
The fact that normally a violation by a state of erga omnes obligations does not affect the
material interests of any other states or its nationals is not an obstacle to recognizing that all
other states possess a subjective right in the respect of these obligations. In the South West
Africa cases, the ICJ rejected the third preliminary exception submitted by South Africa,
according to which the conflict or disagreement alleged by the applicants was not a dispute
the Court could have adjudicated upon as no material interest of the applicants or their
nationals was involved.49 In a subsequent decision concerning the same cases, the ICJ
confirmed that a legally protected interest ‘need not necessarily relate to anything material or

44
According to the 1949 Working Party Report on Brazilian Internal Taxes, GATT/CP.3/42, 30 June 1949,
II/181, 185, at para 16, ‘the absence of imports from contracting parties ... would not necessarily be an
indication that they had no interest in the exports of the product affected by the tax, since their potentialities as
exporters, given national treatment, should be taken into account’. The potential character of the harm also
means that a Member could resort to the dispute settlement system in respect of measures that could in
perspective have a negative impact on the competitive relationship, even if not yet enforced: US – Section 337 of
the Tariff Act of 1930, 7 Nov. 1989, BISD (36th Suppl.), at para. 5.13. See also US – Measures Affecting
Alcoholic and Malt Beverages, 19 June 1992, BISD (39th Suppl.) 206. The notion of potential harm is well
known in the case law of both the ICJ (see Wimbledon Case, supra note 5) and the ECJ (Case 8/74, Procureur
du Roi v. Dassonville [1974] ECR 837, at 852). Being related to conditions of competition, this notion must be
kept separate from that of legitimate expectations. The latter expression belongs to the non-violation procedure:
see India – Patent Protection for Pharmaceutical and Agricultural Chemical Products, 19 Dec. 1997,
WT/DS50/AB/R, at para. 42; EC – Customs Classification of Certain Computer Equipment, 5 June 1998,
WT/DS62/AB/R, Appellate Body Report, at paras 88 ff.
45
Japan – Taxes on Alcoholic Beverages, WT/DS8/AB/R, 4 Oct. 1996, 16.
46
Korea – Taxes on Alcoholic Beverages, WT/DS75/AB/R, 18 Jan. 1999, at para. 120.
47
EEC – Measures on Animal Feed Proteins, BISD (25th Suppl.), 14 Mar. 1978, at paras 5.57, 5.60, and 5.76.
48
Japan – Alcoholic Beverages, supra note 63. Similarly, quantitative restrictions are illegal under Art. XI
GATT even if there is no actual effect on trade: see EEC – Payments and Subsidies to Processors and
Producers of Oilseeds and Related Animal Feed Proteins, BISD (37th Suppl.), 25 Jan. 1990, 86 (M 126).
49
South West Africa Cases, Preliminary Objections [1962] ICJ Rep 319, at 327.

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“tangible” and can be infringed even though no prejudice of a material kind has been
suffered’.50
In the first decision, the ICJ introduced the notion of erga omnes obligations. It declared that
the members of the League of Nations ‘were understood to have a legal right or interest’ in
the observance by South Africa of its obligations deriving from the mandate over South West
Africa, regardless of any prejudice of a material kind.51 Importantly, in the second decision
the Court did not in principle reject the notion of erga omnes obligations; it rather maintained
that the subjective rights ‘must be clearl vested in those who claim it by some text or
instrument, or rule of law’, a condition which was not satisfied in the cases under scrutiny.52
The notion of erga omnes obligation was further developed by the ICJ, which on several
occasions did not hesitate to confirm that all states taken individually have a legal interest –
intended as a subjective right – in the respect of such obligations, even if their material or
moral interests are not involved.53 Hence, there is no departure from the undisputed
assumption that the ‘correlation between a legal right on the one hand and a subjective right
on the other admits of no exception’,14 nor any need to resort to the legal fiction of a
relationship between the defaulting state and the international community as a whole or to the
notion of actio popularis.54
In the case at hand, Merovidea has revoked the MFN status given to Brezania and put strict
import controls over all imports coming from Brezania and introduced a green cess @12%
above all other taxes and duties.55 This imposing of a 12% green cess tax on Brezania is
clearly a violation of International Law obligations as, Brezania is a developing nation56 also
its GDP is very low57 and imposing such a huge amount of tax violates the obligations of
International law.

50
South West Africa Cases, Second Phase [1966] ICJ Rep 6, at 32.
51
Supra note 9, at 336. As observed by Judge Morelli, the expression ‘legal right or interest’ is to be read as
synonymous with subjective right: supra note 8, at 57 ff, 61.
52
Supra note 10, at 32.
53
See, in particular, Barcelona Traction, Light and Power Company, Limited, Judgment [1970] ICJ Rep 3, at 32;
Case Concerning East Timor, Judgment [1995] ICJ Rep 90, at 102; Case Concerning Application of the
Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections, Judgment
[1996] ICJ Rep 595, at 616.
54
R. Ago, 2nd Report on State Responsibility, 22 YBILC (1970-II), Part 1, at 192–193. The ILC further observes
that ‘to each and every obligation corresponds per definitionem a right of at least one other State’: ILC, Report
to the General Assembly, 37 YBILC (1985-II), Part 2, at 25.
55
Moot Preposition ¶ 21
56
Moot Preposition ¶ 15
57
Moot Preposition ¶ 3

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 5. Merovidea has violated principles of International Law by
conducting Nuclear Tests close to its border with Brezania and must
make reparations to Brezania for conducting these tests and
incidental Environmental Damage sustained by Brezania especially
to Yak Wetland

At the dawn of the Nuclear Era, humankind was confronted with an unprecedented power. Its
dangers, if unleashed, are likely to produce catastrophic results that are virtually irreversible
and beyond human control. In the early days of nuclear development, hazards came
predominantly from military nuclear weapon tests and nuclear installations. 58 A nuclear
power plant has the potential to inflict significant environmental damage59 on both the state in
which it is situated and the neighbouring states.
In March 1954, the United States conducted nuclear tests at Eniwetok Atoll in the South
Pacific. In January 1957, the United Kingdom carried out its first hydrogen bomb tests on the
high seas around Christmas Island. Both countries established a ‘‘danger area” and undertook
substantial preparation and precautions against possible harm to nearby shipping, civil
aviation, and fishing activities.60 Nevertheless, radioactive contamination resulted in the
surrounding areas. In the Eniwetok Atoll nuclear tests conducted by the United States, some
Japanese fishermen were exposed to radiation and one died as a result. Without accepting
international liability, the United States Government paid US$2 million as compensation ex
gratia, to Japan for damage caused by the tests, including both personal injuries suffered by
the Japanese fishermen and damage to the Japanese fishing industry. In the given case
Merovidea has not only conducted the tests very close to the border of Brezania but also
refused to pay any compensation for the irreversible damage caused to the adjoining areas of
Brezania including Yak Wetlands.61 This clearly shows the violation of international law
obligations on part of Merovidea.

58
M. J. L. Hardy, ‘‘Nuclear Liability: The General Principles of Law and Further Proposals,” British Yearbook
of International Law, vol. 36 (1960), p. 223, at p. 238.
59
This Article views environmental damage as consisting of damage to the environment per se—i.e., damage
distinct and independent from any economic loss or personal injury. Some examples include: loss of
biodiversity, damage to wildlife, effects on air or water quality, aesthetic harm, etc. Such damage cancoincide
with commercial loss, but it can also exist independently.
60
Whiteman, Digest, vol. 4, pp. 553--607.
61
Moot Preposition ¶ 24

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The International Court of Justice stated that it could not reach a decision with regard to
legality or illegality of the use of nuclear weapons by a state in an extreme circumstance of
self-defense in which the very survival of the State would be at stake. In the case at hand,
Merovidea conducted the tests not in self-defense but in order to show its power to Brezania
and to threaten it. The Court held that a threat of use or the use of nuclear weapons would
generally be contrary to the rules of international law applicable in armed conflict, and, in
particular, to the principles and rules of humanitarian law.62 Judge De Castro, stated that the
case involves an application of the principle articulated in the Trail Smelter case according to
which no state has the right to use its territory for activities that would cause injury in another
state.63 The court in the case also took into account the claims of Australia and New Zealand
regarding to their right to “be free from atmospheric nuclear tests by any country.” In
ordering the interim measures, the Court noted the claims formulated by the government of
Australia, namely:
(i) The right of Australia and its people, in common with other States and their
peoples, to be free from atmospheric nuclear weapons tests by any country . . . ;
(ii) The deposit of radioactive fall-out on the territory of Australia and its dispersion
in Australia’s airspace without Australia’s consent:
a) violates Australian sovereignty over its territory;
b) impairs Australia’s independent right to determine what acts shall take place
within its territory and in particular whether Australia and its people shall be
exposed to radiation from artificial sources;
(iii) Interference with ships and aircraft on the high seas and in the superjacent
airspace, and the pollution of the high seas by radioactive fall-out, constitute
infringements of the freedom of the high seas [emphasis added].64

The existing international nuclear liability regime is based on the Convention on Third Party
Liability in the Field of Nuclear Energy of 29th July 1960, as amended by the Additional
Protocol of 28th January 1964 and by the Protocol of 16th November 1982 (Paris
Convention) and the 1963 Vienna Convention on Civil Liability for Nuclear Damage (Vienna

62
Michael Akehurst, Custom as a Source of International Law, 47 British Yearbook of International Law 1
(1974–75).
63
Dissenting opinion Judge De Castro, Australia case, Para 18
64
Nuclear Tests Case, (New Zealand v. France), (Interim Measures), June 22, 1973, (1973) ICJ Reports 135;
Nuclear Tests Case, (Australia v. France), (Interim Measures), June 22, 1973, (1973) ICJ Reports 99. Para 22,
Interim Measures.

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Convention), which set forth the basic principles of nuclear liability law. 65 These principles
include the following:66
• Strict (no-fault) liability is imposed on the operator.67 There is a long-established tradition
of legislative action or judicial interpretation that a presumption of liability for hazards
created arises when a person engages in a dangerous activity. Because of the special dangers
involved in the activities within the scope of the Conventions and the difficulty of
establishing negligence in particular cases, this presumption has been adopted for nuclear
liability. Strict liability is therefore the rule; liability results from the risk, irrespective of
fault.
Wetlands are defined as areas of marsh, fen, peatland or water, whether natural or artificial,
permanent or temporary, with water that is static or flowing, fresh, brackish or salt, including
areas of marine water the depth of which at low tide does not exceed six metres.68
Wetlands are among the world’s most productive environments. They are cradles of
biological diversity, providing the water and primary productivity upon which countless
species of plants and animals depend for survival. They support high concentrations of birds,
mammals, reptiles, amphibians, fish and invertebrate species. Wetlands are also important
storehouses of plant genetic material. Rice, for example, which is a common wetland plant, is
the staple diet of more than half of humanity.69
In the case at hand Merovidea has conducted several nuclear tests within 20 km of its border
with Brezania just to remind Brezania of its military strength. 70 On 1st May, 2017, IAEA
conducted a research on the after effects of these nuclear tests and concluded that the tests
have caused certain irreversible damage to the ecology of the area and presence of low-grade
radiation was also found in the adjoining areas of Brezania including the Yak wetlands.71
From the above mentioned conventions it is very clear that wetlands are very important for
maintain the balance of the ecology and they should be protected, and the nuclear tests done
by Merovidea very close to the Brezania borders has caused a lot of harm to the Yak
Wetlands and Merovidea should compensate for the same.

65
These Conventions were linked in 1988 by the Joint Protocol Relating to the Application of the Vienna
Convention and the Paris Convention.
66
Point 2, Overview of the Modernized IAEA Nuclear Liability Regime of Civil Liability for Nuclear Damage
67
Referred to in the Conventions as “absolute liability”.
68
Article 1.1 of the Ramsar Covention
69
The Ramsar Convention Manual on Why to conserve Wetlands.
70
Moot Preposition ¶ 23
71
Moot Preposition ¶ 24

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Thus, it is very evident that Merovidea has violated principles of international law by
conducting nuclear tests close to its border with Brezania and must make reparations to
Brezania for conducting these tests and incidental environmental damage sustained by
Brezania especially to the Yak wetlands.

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 6. The Creek of Tenling shall be divided mid-channel as per
International Law.

Brezania had permitted the exploration and exploitation of the reserves found in creek of
Tenling.72 This move of Brezania was vehemently opposed by Merovidea and it claimed that
the entire creek belonged to Merovidea.73
The claims of Merovidea should not be considered as there is no substantial evidence proving
the same. The claims cannot be entertained just because they are made, Merovidea does not
have single evidence proving that the creek belonged to it from the 13th century. Just based on
certain historical documents and maps this should not be claimed and the creek should be
divided mid-channel as agreed by Brezania.74

The Creek of Tenling (“The creek”), one of the largest fishing grounds in North Amber Sub-
Continent, is yet another geographical feature of importance in this region. The 80km long
creek is more of a tidal estuary, though it is navigable throughout the year. Fishermen from
both the nations have been amicably fishing in the creek since ages. The Creek separates
Merovidea from Brezania at the latter’s southern border and opens up into the Amberosia
Ocean.75
In the case at hand it is very evident that the creek has been used amicably by the citizens of
both the nations since ages and hence the creek should be divided even if there are claims by
Merovidea that the creek solely belongs to it. It is clearly specified in the moot preposition
that the 80km long creek separates both the countries and hence it is evident that it does not
belong to a particular country and thus the Hon’ble court should hold that The Creek of
Tenling shall be divided mid-channel as per International Law.

72
Moot Preposition ¶ 10
73
Ibid.
74
Moot preposition ¶ 11
75
Moot preposition ¶ 2

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 PRAYER FOR RELIEF

Wherefore, in the lights of issues raised, arguments advanced, reasons given and authorities
cited, this Hon’ble Court may be pleased to:
7. HOLD that Brezania has not violated the “Treaty of Equity” and the “Uba
Agreement” and is entitled to the defence of necessity for interlinking the rivers and
constructing dams for mitigating floods.
8. HOLD, that Brezania is not responsible for any environmental damage sustained by
Merovidea. In any case, Brezania cannot be held liable for the actions of its
corporations.
9. HOLD, that Merovidea has breached international law obligations by expropriating
the assets of Central Bank of Brezania in Merovidea.
10. HOLD, that Merovidea has violated International Law obligations being a member of
WTO by putting undue trade restrictions on Brezania.
11. HOLD, that Merovidea has violated principles of international law by conducting
nuclear tests close to its border with Brezania and must make reparations to Brezania
for conducting these tests and incidental environmental damage sustained by Brezania
especially to the Yak wetlands.
12. HOLD, that The Creek of Tenling shall be divided mid channel as per International
Law.

And any other relief that this Hon’ble Court may be pleased to grant in the interests of justice,
equity and good conscience.

FOR WHICH THE RESPONDENTS SHALL FOREVER PRAY

ALL OF WHICH IS RESPECTFULLY SUBMITTED

COUNSELS FOR RESPONDENTS

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